Andrew L. Urban.
If successful, will upcoming High Court appeals prompt reform, including a much needed Criminal Cases Review Commission (CCRC) – as they should?
When the High Court overturned the wrongful and controversial conviction of Cardinal Pell 7 – 0 in April 2020, (upheld earlier by Victoria’s appeal court) it may well have alerted the legal fraternity to urgent reforms in Australia’s justice system, including the need for a CCRC.
“We are confident that the two appeals currently seeking Special Leave to appeal to the High Court (Derek Bromley in South Australia, and Susan Neill-Fraser in Tasmania) will be successful and provide the occasion for us to contemplate the significance of the egregious errors which have occurred in both of those cases,” write Dr Robert Moles and Bibi Sangha, Networked Knowledge and Adjunct Associate Professors, College of Business Government and Law, Flinders University, in a new paper.
Robert Xie in NSW is also preparing to seek leave to appeal to the High Court, challenging his conviction for the murder of five members of his wife’s family in 2009, a conviction that rests on (flimsy) circumstantial evidence, and in defiance of his claimed alibi. The High Court, Xie hopes, will use the language in its Pell decision: a jury acting rationally ought to have entertained a reasonable doubt about the guilt of the accused. This major crime took four trials and eight years to end up with what is arguably a wrongful conviction, leaving the real killers free.
The initiative to set up the CCRC in the UK , Sangha and Moles point out “arose from the overturning of the IRA bombing convictions in the early 1990s – the Birmingham Six, the Guildford Four, the Maguire Seven and the Judith Ward case. The convictions had been obtained by what the appeal court described as false and fraudulent evidence.
“The scientists at trial had presented the results of preliminary screening tests (for nitro-glycerine) as if they were confirmatory. The appeal court, after 20 years, was informed that substances such as shoe polish, the nitrites in common soaps and the plastic backing on playing cards would also have produced positive results to the screening test. This error was very similar to that which occurred in the case of Susan Neill-Fraser in Tasmania, where the results of preliminary screening tests for blood were presented as if they were confirmatory. Of course, with the added experience from the UK, and also from other Australian and Canadian cases, it is something which should not have occurred. That error alone would warrant her conviction being set aside.”
A CCRC would not by itself avoid such miscarriages of justice, but it would make them easier to correct. Such a body may also add its voice to the calls for broad based reforms in the criminal justice system – many of which we have outlined. For one thing, an effectively structured CCRC system across the Australian jurisdictions would enable those who are dismissed in the appeals court to seek redress via the CCRC, not be faced with the High Court as the only option. The High Court would no doubt be grateful for some relief of its workload, too …
Former High Court judge Michael Kirby is on the record as an enthusiastic supporter of reforms, notably a CCRC structure.
And just a couple of days ago, Telegraph journalist Peter Gleeson called for reform: “Australia’s criminal justice system is broken and it needs massive structural reform. It’s time for the High Court to convene a national summit on how we fix a system that has not fundamentally changed since the Magna Carta in the 13th century.”